336 



FLOKIDA. 



Suppose that at the dose of the election at any 

 polling-place it should be ascertained that there 

 were one or more ballots found in the box than there 

 were names on the poll lists, and the inspectors, 

 under the law, draw out and destroy a number of 

 ballots equal to the excess, so that the list and the 

 ballots agree in number, and a return is made of 

 the result excluding the votes so drawn out and de- 

 stroyed ; yet it may be proved that these ballots 

 were " actually cast." On this showing, would the 

 returns give the vote "actually cast"? I think it 

 would, though it did not show the entire vote cast. 

 The votes returned were votes actually cast, and the 

 return does not state a falsehood, is not irregular 

 nor a fraud, because it is a lawful return. Yet this 

 return is precisely as false as the return from Madi- 

 Bon Qounty, and, with the same propriety, should be 

 rejected. Neither should be rejected, because both 

 are true and according to law. 



Under the law and the rules heretofore announced 

 by this Court upon the subject, the State Board can 

 only investigate the good faith and regularity of the 

 action of the County Board and their certificate, 

 when these are challenged, for their own protection 

 and that of the public, and the due exercise of this 

 power is the only protection against imposition. 



The omission of the inspectors of a precinct or 

 polling-place to make a return to the County Board 

 may occasion inconvenience to parties interested in 

 the vote in a contest before a tribunal competent to 

 hear and decide the right to an office, but it is as- 

 suredly not the basis' of the imputation of fraud or 

 falsehood against the county returns or the County 

 Boarl. 



Under the circumstances, and in view of the de- 

 cision of this Court in the case of Drew, relator, 

 against the State Board, the election return from 

 Madison County does not come " under the condem- 

 nation 1 ' of that decision. 



Justice "VTescott, in his dissenting opinion, 

 says: 



The first question which arises here in connection 

 with the general question as stated is, Did the State 

 Board have the right to ascertain this fact as to the 

 actual rote cast at the election, outside of what ap- 

 peared on the face of this return ? The alternative 

 writ to which this demurrer is interposed alleges as 

 facts that the return from Madison County omits 

 this precinct, is regular upon its face, and is the bona 

 fide act of the County Board. If the State Board is 

 limited in its inquiries to the face of such return, 

 then the fact of omission of this precinct not thus 

 appearing in this case, and the Board having no 

 power to go beyond its face to make such inquiry, 

 the necessary legal result would be that the act of 

 the Board was unauthorized by law ; that they 

 should have counted the return as it appeared, and 

 the result would be that the peremptory writ should 

 be granted. Such was the view of relator's counsel 

 in the case of Drew vs. Board of State Canvassers 

 6 Fla., 22, 34, 35), if I understand the pleadings 

 and briefs therein. In my judgment, this question 

 wa there directly presented for consideration, and 

 wa determined. . . . 



The statute controlling the State Canvassing 



oard, flfter providing for its organization, directs 



: shall "proceed to canvass the returns of said 



ion, and determine and declare who shall have 



been elected to any such office, or as such member 



shown by such returns. If any such returns 



1 be shown or shall appear to be so irregular, 



jilse, or fraudulent that the Board shall be unable to 



the true vote for any such officer or mem- 



, they shall so certify, and shall not include such 



thoir determination and declaration; and 



Xonll 1 f , tate 8ha11 P rese e and file in his 



;e all gtich returns, together with such other docu- 



aents and papers as may have been received by him 



or by said Board of Canvassers. The said Board 

 shall make and sign a certificate containing in words 

 and figures written at full length the whole number 

 of votes given for each office, the number of votes 

 given for each person for each office and for member 

 of the Legislature, and therein declare the result." 

 It needs no argument to show that, under the 

 statute, the basis of the determination and declara- 

 tion by the Board as to who shall have been elected 

 to any office must be the returns, and that their ac- 

 tion must correspond to what is shown by the 

 returns. "When, however, such returns shall bo 

 shown or shall appear to be so irregular, false, or 

 fraudulent that the Board shall be unable to deter- 

 mine the true vote for any such officer or member, 

 they shall so certify, and shall not include such re- 

 turn in their determination. If this clause be a 

 grant of power in conformity to organic law, then in 

 the event it is shown or appears that a county return 

 is irregular or false or fraudulent, within the mean- 

 ing of this section, there certainly can be no doubt 

 that the State Board must not count such return. 

 Again, as the statute provides that " the Secretary 

 of State shall preserve and file in his office all such 

 returns, together with such other documents and papers 

 as may have been received by Mm or by said Board of 

 Canvassers," it is equally clear that the papers and 

 documents which may be considered by the Board 

 in making their determination are not ihe*retvrns 

 alone (which under the law are required to be sent 

 by the county canvassers to the Governor and Secre- 

 tary of State), but, in addition to the returns, are 

 such other papers as may have been received by the Sec- 

 retary of State and the Board. Unless it can be 

 maintained that returns are not only returns, but 

 returns and papers and documents other than returns, 

 and I presume no sane man would endeavor to es- 

 tablish such a proposition, then, under this statute, 

 the Board, in determining this false, irregular, or 

 fraudulent character of returns, may look beyond 

 the face of such returns, and examine and receive 

 papers and documents other than returns. Again, 

 under the law, the county returns are sent alone to 

 the Governor and Secretary of State. They are not 

 sent directly to the Board, and yet the Board are 

 authorized to receive papers themselves, for the law 

 directs what disposition is to be made of such papers 

 when received. 



Again, the law, defining the duties of the county 

 canvassers, provides that the canvass they are to 

 make " shall be made solely and entirely from the 

 returns of the precinct inspectors in each election 

 district, filed by them with the County Judge and 

 Clerk of the Circuit Court respectively, and in no 

 case shall the Board of County Canvassers change or 

 vary in any manner the number of votes cast for the 

 candidates respectively at any of the polling-places 

 or precincts in the county, as shown by the returns 

 of the inspectors of such polling-places or precincts. 

 They shall compile the result of the election as shown 

 by said inspectors' returns, and shall then make and 

 sign duplicate certificates, containing, in words and 

 figures written at full length, the whole number of 

 votes given for each office, the names of the persons 

 for whom such votes were given for such office, and 

 the number of votes given to each person for such 

 office." The law then provides that one of such cer- 

 tificates shall be sent to the Governor and one to the 

 Secretary of State. This Court, in the State vs. the 

 Board of Canvassers of Alachua County (17 Fla.), de- 

 termined but a few weeks since that under this statute 

 the duties of the County Board were solely minis- 

 terial, and that, in making up their canvass, they 

 were to compute the inspectors' returns and nothing 

 else. In view of the very exact, precise, and re- 

 strictive language of this statute, and the opinion of 

 this Court interpreting it in the case referred to, it is 

 clear that the law prohibits the County Board from 

 placing upon the/acs of its return to the Governor 

 and Secretary of State anything except what is shown 



